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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
December 15, 1999 Session STATE OF TENNESSEE v. FRANKIE E. CASTEEL
Appeal as of Right from the Criminal Court for Hamilton County No. 215403-215404 & 215405 Douglas A. Meyer, Judge

No. E1999-00076-CCA-R3-CD April 5, 2001 Following a jury trial, the defendant was convicted of the first-degree murders of Richard Mason, Kenneth Griffith and Earl Smock in the Hamilton County Criminal Court, Douglas A. Myer, J., and the defendant appealed. The Court holds (1) that the trial court's failure to follow statutory procedures before admitting evidence that the defendant had committed prior bad acts was harmless error; (2) evidence that the defendant had threatened trespassers was properly admitted; (3) the evidence was sufficient to convict the defendant; (4) failure to swear-in the jury prior to voir dire was at most harmless error where the jury was impaneled in another county and sworn in there; (5) the trial court did not abuse its discretion in refusing to allow the defendant to present alternative perpetrator evidence when that evidence was too far removed in time and place to connect it to the murders; (6) the trial court's failure to suppress evidence found on the defendant's property was proper because the evidence was seized during a search for the victims; (7) testimony about the contents of incriminating letters and newspaper articles was necessary to explain the defendant's attempt to destroy them; (8) the trial court properly allowed the state to cross examine the defendant about items seized from his home; but (9) the admission of five hours of an extremely prejudicial conversation between the defendant, his wife and his mistress in order to allow the jury to hear one adoptive admission was reversible error, especially when (10) the state relied on the unfairly prejudicial portion of the conversation when arguing its case to the jury in order to highlight the defendant's character. Reversed and remanded.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed and Remanded. JERRY L. SMITH, J., delivered the opinion of the court, in which JOSEPH M. TIPTON, J., and DAVID H. WELLES, J., joined. Phillip C. Lawrence; Mark D. Hackett; Don W. Poole, Chattanooga, Tennessee, for the appellant, Frankie E. Casteel.

Paul G. Summers, Attorney General & Reporter; Erik W. Daab, Assistant Attorney General, Nashville, Tennessee; William Cox, District Attorney General; C. Leland David, Special Prosecutor, Chattanooga, Tennessee, for the appellee, State of Tennessee. STATEMENT OF FACTS On the afternoon of July 9, 1988, Kenneth Griffith and Earl Smock, two members of the same Air Force Squadron, were on weekend leave visiting Mr. Griffith's father-in-law Richard Mason at Mr. Mason's home in Hamilton County. The three men decided to ride four-wheeled allterrain vehicles ("ATVs") to the "blue-hole," a local swimming area on Signal Mountain. In order to make the trip, Mr. Mason borrowed an ATV from his friend and neighbor, Stanley Nixon. The trio never returned. The defendant had recently bought property near the blue hole. On the afternoon of the disappearance, Vince Brown was helping a friend back a moving van out onto a narrow mountain road and had to stop traffic in order to back the truck out of a driveway. He stopped the defendant driving a muddy Jeep Scrambler; the defendant's wife was also in the jeep. Mr. Brown and the defendant got into a conversation, and the defendant told Mr. Brown that he and his wife were going camping that weekend. Then the defendant left. Later that evening, between 6:00 p.m. and 8:00 p.m., Mr. Brown heard a rapid succession of gunshots coming from near the defendant's land. William Wiggins, one of the defendant's neighbors, also heard a series of gunshots coming from the direction of the defendant's property on July 9, 1988. Between 7:30 p.m. and 8:30 p.m., Mr. Wiggins heard between five (5) and eight (8) shots, all of which were fired within about ten (10) seconds of each other. Sometime later that night, Mildred Hines saw a jeep near Sawyer Road with one or two ATVs in the back. Also on July 9, 1988, Pam O'Neal was camping on property that was near the defendant's. That evening she heard ATVs cross her property. Shortly after that, she heard gunshots. Around 2:00 a.m. the next morning, Ms. O'Neal woke up and decided to go home. As she and her husband were leaving, they saw someone driving a Jeep near Sawyer Road, the area where the ATVs were ultimately found. Jerry and Donna Anderson were in the area where the bodies were ultimately discovered on the night of July 9, 1988 and the early morning of July 10, 1988. They were looking for their son, who was supposedly camping in that area. Some time before 1:30 a.m. July 10, 1988, Jerry and Donna Anderson saw a jeep that was "loaded down" with weight in the back. They also said there was a tarp in the jeep, but when pressed, both Mr. And Mrs. Anderson explained that by "tarp" they meant the canvas top of the jeep. They identified the jeep to the police and identified the defendant's son, Donnie Casteel, as the driver. However, at trial, Donnie Casteel testified that he worked until 11:00 p.m. on July 9, 1988, and that he went to his grandfather's house after that to go to bed. His grandfather confirmed his story. Several others also thought a jeep was in the area that night. Janice Hall lived near Sawyer Road, and heard a large-tired vehicle passing her home several times between 3:00 a.m. and 4:00 a.m. on July 10, 1988. Later that morning at around 6:00 a.m., she saw a female driving the defendant's jeep with a dog in the back. Hershell Green, a neighbor of the defendant's, heard what he believed to be the defendant's jeep on Sawyer Road at around 5:00 a.m. James Walling, who lived on Sawyer Road, saw the defendant's jeep driving in the area at about 6:15 a.m. He remembered the defendant's headlights were off, and daylight was just breaking.

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The next day, John Lines observed a woman washing blood out of the back of a jeep at a local car wash. Mr. Lines asked the woman whether it was blood, and the woman replied that she had just taken a pig to the slaughterhouse. Because slaughterhouses are normally closed on Sundays, Mr. Lines found the woman's answer suspicious so he wrote down the license plate number. Later, Mr. Lines saw the defendant driving a jeep, and Mr. Lines checked the defendant's license plate. The number matched that of the license plate he saw at the car wash. Sunday morning, July 10, 1988 a search party was organized to find the victims. Officer Larry Sneed of the Hamilton County Sheriff's Department responded to a call and found three ATVs dumped in an illegal dumpsite. Two of those ATVs were covered in blood. Bone chips were recovered from one of the ATVs. These were later found to be pieces of a skull that had been hit by a bullet. Police began referring to this area as "Crime Scene I." After finding out that the ATVs had been found, Lee Griffith, one of the victims' brother, was driving home to tell his mother about the news when his vehicle began having trouble. He stopped a jeep, coincidentally driven by the defendant, and asked for a ride. The defendant gave Mr. Griffith a ride, and Mr. Griffith noticed that the jeep was wet in the back. Mr. Griffith thought that the water in the jeep was unusual because it had not rained recently. On Monday, July 11, 1988, the search party began searching the "Helican Road," which was more of a trail that crossed the defendant's property and led to the blue hole.1 As the party began to search the Helican Road, they arrived at the "gate,"in actuality an area where a gate used to be. They noticed that the area around the gate had been manicured, or cleaned so much that it looked unusual. There, the search party found spots of blood and what would later be identified as brain tissue. A more thorough search uncovered a pocketknife belonging to one of the victims and, outside the manicured area, large pools of blood. A police dog later found more blood in the area. Police eventually called this area "Crime Scene II." Following their discoveries, the search party continued searching the area around the gate. Less than a mile from the gate, the party searched the defendant's campsite. In the fire pit and around the campsite, the search party found burnt, blue plastic and a metal grommet. Police collected the substance. At trial, a witness testified that he had seen the defendant with a blue tarp in the back of his jeep the day of the murders. Portia McDowell lived between twelve (12) and fourteen (14) miles away from the blue hole, on Big Fork Road. On Monday, July 11, 1988, Ms. McDowell was taking her customary walk along Big Fork Road. As usual, she passed an illegal dump site on the side of the road. On this walk, however, she noticed something different. The dump site had been cleaned, and a terrible odor emanated from the dump. Ms. McDowell told her husband, Burnie McDowell, about the dump. Mr. McDowell went to look at the dump on Wednesday, July 13, 1988. He noticed a horrible smell and buzzing flies. When Mr. McDowell investigated, he found the victims' bodies. Police were notified, and this area became known as "Crime Scene III." Dr. Frank King, the Hamilton County Medical Examiner, performed autopsies on the bodies. He found that the skull fragments that had been discovered at Crime Scene II matched the skull of
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The Helican Road turned off of a larger road, which was paved, and went up a hill. 2.2 miles later, the road passed the area called "the gate". Less than a mile from that gate, the road led to the defend ant's prope rty, and then to power-lines . After that, the roa d descen ded do wn a hill to the blu e hole.

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Kenneth Griffith. Mr. Griffith died from a shotgun blast to the head which left a portion of his head missing. Richard Mason also died from a shotgun blast, but Mr. Mason was shot in the chest. Earl Smock also died from shotgun blasts. Mr. Smock was shot twice, once with "birdshot," or smaller pellets, and once with "buckshot," or larger pellets. On Monday, July 11, 1988, Detective Sneed asked all property owners in the area to come to the area that the police were searching. The defendant came to the area that afternoon. Detective Sneed asked to see the defendant's vehicle, which was parked at a friend's house. Detectives went with the defendant to see the jeep, and the defendant gave detectives permission to search the jeep. Inside the jeep, detectives found a "logbook" that belonged to the defendant. Inside the book, the defendant had recorded the details of several encounters that he had had with trespassers, including most of the trespassers' names, telephone numbers and license plate numbers. The detective asked the defendant if he could have the book, and the defendant gave his permission. The detectives then asked the defendant whether he owned a shotgun, and the defendant said that he did. The defendant then gave the detectives permission to borrow the gun, and the detectives went to the defendant's house to retrieve it. Ballistics tests performed on the shell fragments and wadding from the scene indicated that the gun may or may not have fired the fatal shots. Although the defendant remained a suspect, he was not charged until years later. Before the defendant was charged, in August of 1996, Marie Hill, an old friend of the defendant's, began having an affair with him. After the affair began, Ms. Hill received two anonymous letters that accused the defendant of committing the murders. The letters also contained newspaper clippings about the murders. At trial, Suzie Casteel, the defendant's wife, testified that she wrote the letters in an effort to sabotage the defendant's affair, but that the defendant was really innocent. Not long after the affair began, Ms. Hill allowed the police to install listening devices on her phone lines and in her house. On October 12, 1996, the defendant's wife came to Ms. Hill's house and confronted the defendant and Ms. Hill. That confrontation turned into a five-hour conversation between the defendant, his wife and his mistress. During trial, the court played a tape of the entire conversation for the jury. Police executed a search warrant of the defendant's residence in order to find the anonymous letter that the defendant had taken from Ms. Hill. While searching for the letters, Police seized fourty-four (44) items, including a shotgun and ammunition. The defendant was finally charged with the murders on April 15, 1997. The defendant filed a motion to change venue due to the amount of publicity in the case, and the court granted the motion. The jury was selected in Loudon County and brought to Hamilton County for the trial. Before the trial, the defendant moved to exclude any evidence of the defendant's prior confrontations with trespassers, but the court denied the motion. At trial, eighteen witnesses testified to prior confrontations that they had with the defendant when they came on or near the defendant's property. The defendant maintained, both before and during trial, that he had nothing to do with the murders. He testified that he was camping on his property near Crime Scene II on the night of July 9, 1988. He testified that he and his wife went to the blue hole that afternoon and that they did not return to the campsite until after 10:00 p.m. The defendant testified that he and his wife merely went to sleep that night, and that they did not hear anything unusual. The defendant was convicted on all counts. He appeals that conviction here.

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PRIOR ACTS The state presented eighteen witnesses, all of whom testified about prior encounters with the defendant. Specifically, Terry Mills, Jeff Mann, David Mosteller, Derrek Belk, Michael Killingsworth, DeAnn Kennedy, Vince Brown, Donald Jones, Tom Clark, Judith Lowrey, Melton Lowrey, John Savor, James Perry, Gary McDowell, Paul Meeks, Johnathon Ewton, Mike Dantzler, and Steve Craig all testified about encounters that they had with the defendant.2 In eight of those cases, the court did not hold any hearing outside the presence of the jury to determine whether the testimony complied with the requirements of Rule 404 of the Tennessee Rules of Evidence before the witnesses testified. The court did hold a jury-out hearing for three of the witnesses but neglected to state on the record the reasons for admitting the evidence. In the remaining cases, the court held a jury-out hearing and stated the reasons for its ruling on the record. The defendant argues that the court impermissibly ignored the mandates of Tenn. R. Evid. 404(b), and that even if the court substantially complied with the procedural requirements of the rule, the danger of unfair prejudice resulting from each witness's testimony outweighed the testimony's probative value. Evidence that an accused has committed some other crime or bad act independent of that for which he is charged is generally inadmissible, even though it may be a crime or act of the same character as that for which the defendant is on trial. Tenn. R. Evid. 404(b); State v. Howell, 868 S.W.2d 238, 254 (Tenn. 1993), cert denied, 510 U.S. 1215, 114 S. Ct. 1339, 127 L. Ed. 2d 687 (1994). However, if evidence that a defendant has committed an act separate and apart from the one for which the defendant is on trial is relevant to some material matter at issue in the case on trial and if its probative value is not outweighed by the danger of its prejudicial effect, the evidence may be admitted. Tenn. R. Evid. 404(b); Howell, 868 S.W.2d at 254. Issues to which such evidence may be relevant include identity, motive, common scheme or plan, intent or the rebuttal of accident or mistake defenses. Tenn. R. Evid. 404(b), Advisory Commission Comments. By its very nature, evidence that the defendant has committed a bad act other than that for which he is on trial carries some risk of unfairly prejudicing the defendant. In recognition of this risk, Rule 404(b) establishes special procedures which must be followed before evidence of prior bad acts may be admitted. See Tenn. R. Evid. 404(b), Advisory Committee Comments. The procedures which must be satisfied before allowing such evidence are: (1) The court upon request must hold a hearing outside the jury's presence; (2) The court must determine that a material issue exists other than conduct conforming with a character trait and must upon request state on the record the material issue, the ruling, and the reasons for admitting the evidence; and (3) The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice.

Mark Sively also testified about a prior enc ounter with the defendan t, but his testimony concerned statem ents, not acts of the defendant. Accordingly, his statements are analyzed in the following section.

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Tenn. R. Evid. 404(b). Finally, the court must find that the evidence is clear and convincing that the defendant committed the other act. Id., Advisory Commission Comments; State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985). In this case, a thorough review requires analysis of each witness in turn: Terry Mills: The trial court held a jury-out hearing to determine the substance of the witness's testimony. At the hearing, Mr. Mills testified that, on the day of the murders, he and his friend Jeff Mann were driving two vehicles to the blue hole to go swimming. Before they reached the blue hole, they saw the defendant walking toward them with a shotgun. Mr. Mills testified that the defendant appeared angry, that he pointed the gun at Mr. Mills, and told Mr. Mills that trespassers were not allowed on the defendant's property. The defendant then escorted the pair to his nearby campsite and made them record in his logbook their names and the types of vehicles they drove. After that, Mr. Mills and Mr. Mann talked to the defendant for a short time, and then left. Following that hearing, the court ruled that it found the evidence relevant to a material issue other than character, namely "the defendant's state of mind," and that the probative value of the testimony was not outweighed by the danger of unfair prejudice. The court then allowed the witness to testify. Jeff Mann: Mr. Mann was with Mr. Mills when the above encounter occurred. Thus, despite the defendant's objection, the court allowed Mr. Mann to testify without holding a jury-out hearing. The court reasoned that, because it had already heard one witness's account of the encounter, there was no need to hear another before the jury did. David Mosteller: The court held a jury-out hearing, at which Mr. Mosteller testified that on June 5, 1988, over one month before the murders, he and two friends, Alan Barnes and Derek Belk, were driving to the blue hole to go swimming. Before they reached the blue hole, they were stopped by the defendant. The defendant approached Mr. Mosteller's vehicle, laid the end of a shotgun inside the passenger window and told the men to stay off of his property or he would shoot them. The court held that the evidence was relevant to prove the defendant's motive to defend his property, and that the probative value of the evidence was not outweighed by any prejudicial effect. The court then asked whether the state intended to present other witnesses that would testify about this encounter, and the state responded that Derek Belk would also testify about this incident. The court then held "[s]o it'd be the same [ruling] for Mr. Belk and [defense counsel] can note an exception for Mr. Belk also." Then, Mr. Mosteller testified. Derek Belk: As noted above, the court ruled, sua sponte, that Mr. Belk's testimony was admissable before Mr. Mosteller testified. Thus, the court allowed Mr. Belk to testify about the above encounter without first holding a hearing. Michael Killingsworth and DeAnn Kennedy: Before Mr. Killingsworth or Ms. Kennedy testified, the following colloquy occurred: Mr. Poole (defense counsel): Your honor, I think we're getting into another group of

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